Update: The Cherry challenge to the prorogation of Parliament – what happens next?

In this post, UKSC Blog editor, Emma Boffey, an associate at CMS based in Scotland, updates on the current status of the Scottish legal challenge to the proroguing of the UK Parliament: a case widely expected to head to the UK Supreme Court in the coming weeks.

This week, the UKSC Blog team live blogged from the Court of Session in Edinburgh as the petition for judicial review of the Government’s ability to prorogue the UK Parliament – brought at the instance of Joanna Cherry QC MP and others – was heard before Lord Doherty. Following the Queen’s signing of an Order in Council authorising the prorogation of Parliament last week, an urgent motion had been brought seeking to suspend the prorogation. That motion was refused last week and the petition for judicial review itself has also now been refused, with Lord Doherty giving his opinion earlier this morning.

This afternoon, the petitioners reclaimed (appealed) to the Inner House of the Court of Session. Lord Malcolm agreed to accelerate the timetable for the substantive appeal hearing and it will now be heard tomorrow, Thursday 5 September 2019, from 9.30am in Court 1.

As we reported yesterday, the Lord Advocate, the senior Scottish law officer, has sought permission to intervene in these proceedings; that permission has been granted. In a new development today, the BBC also sought permission to intervene, for the purposes of seeking full access to redacted documents lodged by the UK Government in the proceedings. The BBC intervention has not yet been decided and will likely be heard as a preliminary matter tomorrow morning.

The UKSC Blog team hope to live blog the hearing from Court 1 tomorrow (Wi-Fi permitting…).

Elsewhere, the separate challenges in the other jurisdictions of the UK are now well underway. In England & Wales, Gina Millar, the businesswoman who brought the UK Supreme Court appeal of R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5 has also commenced proceedings, with a hearing fixed for tomorrow, Thursday 5 September 2019 (interventions in those proceedings include the shadow Attorney General Shami Chakrabarti, the Welsh Government, the Scottish Government and the former Prime Minister Sir John Major). Raymond McCord, a high-profile victims’ rights campaigner, has brought proceedings before the Courts of Northern Ireland, with a hearing fixed for Friday 6 September 2019. Meanwhile, media reports suggest that the UK Supreme Court has provisionally set aside Tuesday 17 September 2019 to hear any appeals arising from the three prorogation cases, which may be conjoined as one.

Events are moving at pace and are developing every day, but one thing is certain: the three cases are adding further to our understanding of the complexities of the UK constitution, as it continues to grapple with Brexit.

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